Get a Medical Marijuana Card, Lose Your Second Amendment Rights

The Bureau of Alcohol, Tobacco, Firearms and Explosives wants to prohibit patients from protecting themselves. If you are a medical marijuana patient in one of the 16 states (plus the District of Columbia) that allow for it, you’ve got reason to believe lately that the government has it in for you. You’ve got federal raids on the places where you can conveniently buy your medicine, the governor of Arizona trying to overturn in court her citizens’ choice to institute a medical marijuana system, and Michigan’s attorney general trying to make life as hard as he can for those using the system his state’s voters approved by 63 percent in 2008. And while it isn’t directly the government’s fault, doctors are taking people off liver transplant waiting lists for using medical pot.

It isn’t just that the government on both the federal and state level doesn’t want you to be able to legally and conveniently obtain your medicine, if that medicine is pot. The Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) insists you inherently lose a key constitutional right merely by letting your state know you might want to take pot medicinally. Merely having a state medical marijuana card, BATFE insists, means that you fall afoul of Sect. 922(g) of the federal criminal code (from the 1968 federal Gun Control Act), which says that anyone “who is an unlawful user of or addicted to any controlled substance” is basically barred from possessing or receiving guns or ammo (with the bogus assertion that such possession implicates interstate commerce, which courts will pretty much always claim it does).

Nevada licenses medical pot users. Rowan Wilson, a Carson City-area woman who works as a medical technician in residential care homes, believes pot might be useful for her painful menstrual cramps. After going through a seven-month process to obtain a medical marijuana card, she attempted in October to purchase a gun from a gun dealer, Fred Hauseur, who was also a personal acquaintance. The Form 4473 that the BATFE requires every gun purchaser to fill out asks, “Are you an unlawful user of, or addicted to, marijuana…or any other controlled substance?” Wilson, not considering herself an unlawful user or addict but aware, as she says in a deposition in the case, that BATFE “has set down a policy whereby it is presumed that any person holding a medical marijuana registry card is automatically considered an unlawful user of, or addicted to marijuana ” left that line blank.

Hauseur, the dealer from whom Wilson was trying to buy a Smith & Wesson .357 Magnum, knew Wilson, and knew she was a card holder. He also knew about the contents of a September 2011 memo sent out by BATFE to federally licensed gun dealers. The memo says that “there are no exceptions in federal law for marijuana purportedly used for medicinal purposes, even if such use is sanctioned by State law…any person who uses…regardless of whether his or her state has passed legislation authorizing marijuana for medicinal purposes, is an unlawful user…and is prohibited by Federal law from possessing firearms of ammunition…..if you are aware that the potential transferee is in possession of a card authorizing the possession and use of marijuana under State law, then you…may not transfer firearms or ammunition to the person.” And indeed, Hauseur did not.

Wilson thinks that this BATFE policy violates her Second Amendment rights. With the help of Nevada lawyer Chaz Rainey of Rainey Devine, she filed suit in October in federal district court in Nevada against Department of Justice chief Eric Holder, the BATFE, and its acting director and assistant director. As the suit says, “Ms. Wilson has never been charged with or convicted of any drug-related offense, or any criminal offense….Indeed, no evidence exists that Ms. Wilson has ever been ‘an unlawful user of, or addicted to, marijuana….’ Ms. Wilson maintains that she is not an unlawful user of or addiction to marijuana….Nonetheless, Ms. Wilson was denied her Second Amendment right to keep and bear arms based solely on her possession of a valid State of Nevada medical marijuana registry card.” The suit argues the BATFE policy also violated her Fifth Amendment right to due process since it presumes she is a prohibited drug user arbitrarily.

The federal government is expected to file a reply before the end of the year, and Wilson’s lawyer Rainey says he hopes the Feds “don’t engage in long drawn-out lengthy discovery process, deposing everyone involved.” Rainey notes a case intersecting guns and drugs could roll either way—a pro-Second Amendment judge could be uncomfortable with the marijuana part, and a pro-medical marijuana judge uncomfortable with the gun part. Rainey doesn’t have experience in the gun law field, but he has some civil rights experience and has found other lawyers and activists in the Second Amendment field helpful in thinking the case through (although most of the bigger gun rights organizations don’t like touching this pot-related case). Wilson had trouble finding a lawyer excited about the case—“some lawyers didn’t want to touch a cannabis case, period.” She finds the existence of any state registry of marijuana users troublesome on general medical privacy grounds. One of her reasons for shouldering the burden of plaintiff is that patients she encounters in her elderly care field are afraid to get a medical card and use pot because of the extra problems that arise—like losing gun possession rights.

While the BATFE has not yet announced any concerted program to go after people who may have had legally purchased weapons before getting a marijuana card, Morgan Fox of the Marijuana Policy Project says that it’s common practice in medical marijuana-related busts that “if weapons are present, there will be gun charges added on as well.” Rainey expects the results of the initial trial to be appealed whoever wins, and is prepared to take it all the way to the Supreme Court. (Montana’s Attorney General Steve Bullock has informed the BATFE that he thinks the policy oversteps federal bounds.)

As Independence Institute gun rights scholar David Kopel explains, some lower courts have decided that while the legal prohibition on felons owning handguns is not inherently unreasonable or unconstitutional, the application of that law to felons of certain types—say, nonviolent ones in the distant past—isn’t always reasonable. While the Wilson case as filed is challenging the very constitutionality of classifying drug users as outside the pale of the Second Amendment, Rainey is also prepared, he says, to argue more narrowly that it is unreasonable to apply that category specifically to Wilson merely on the basis of her possessing the marijuana card.

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